Strategies for Successful Tribal Consultation

Regional and local knowledge is key for culturally sensitive and successful tribal consultation. Each tribe is unique and has an individual and independent cultural and self-governing structure. As such, consultation strategies successful for one tribe may not have the same desired effect with another. For example, GSA’s Rocky Mountain Region has found that successful government-to-government consultation in that Region recognizes the continued tribal emphasis on male authority. Recognizing this, the Region has designated as a Tribal Liaison an individual who is male, part Native American, and regionally knowledgeable about tribes and their individual concerns. This type of issue may not be relevant among tribes with matrilineal traditions or with changed contemporary understandings about authority roles among the sexes.

Federal agencies should be aware that tribes may be reluctant to divulge specific information regarding the location, nature, and activities at properties of traditional religious and cultural significance. The Section 106 consultative process grants authority to a Federal agency to “withhold from public disclosure information about the location, character, or ownership of a historic property when disclosure may cause a significant invasion of privacy; risk harm to the historic property; or impede the use of a traditional religious site by practitioners.” (36 CFR 800.11(c))

Present-day tribal lands and boundaries do not reflect aboriginal and traditional tribal geographic areas. Today’s tribal lands can be many miles from traditional, aboriginal lands. This is especially the case with tribes whose aboriginal lands were east of the Mississippi River; many of these formerly Eastern tribes are now based on reservations in Oklahoma (for example, the Cherokee Nation, Chickasaw Nation, Choctaw Nation of Oklahoma, and Muscogee Nation are all formerly of southeastern states) or elsewhere (for example, the Oneida Tribe of Indians of Wisconsin is formerly of New York State).

NHPA requires Federal agencies to make a reasonable and good faith effort to identify Indian tribes that may attach religious and cultural significance to a property. For example, on a recent project GSA’s Heartland Region investigated the history of local indigenous tribes and their removal to reservations in other states to determine which tribes might have an interest in the Section 106 consultation process. Federal agency officials involved in Section 106 tribal consultation should recognize that even though present-day tribes and their lands may be remote from aboriginal and traditional locations this does not negate the mandate for notification and consultation.

While Native American groups not recognized by the Federal Government as “Indian tribes” are not automatically accorded consulting status under Section 106, they could be included in consultation as “additional consulting parties”. (“Certain individuals and organizations with a demonstrated interest in the undertaking may participate as consulting parties due to the nature of their legal or economic relation to the undertaking or affected properties, or their concern with the undertaking’s effects on historic properties.” (36 CFR 800.2(c)(5))

State Historic Preservation Officers (SHPOs), especially in Western states with many tribes, often have considerable information about and contacts within tribal governments. For example, GSA’s Greater Southwest Region relies on New Mexico’s SHPO for advice in that state, including the SHPO’s county-by-county working list for determining which Native American tribes want to be consulted for proposed projects. Those involved in Section 106 tribal consultation may want to contact SHPOs for information concerning what tribes should be consulted.